oa Fundamina : A Journal of Legal History - Brown v Leyds NO (1897) 4 or 17 : a constitutional drama in four acts. Act four : Kotzé delivers his judgement, Kruger dismisses him, Milner prepares for war and Brown seeks international redress

Abstract

This is the fourth and final article in a series on the historical and jurisprudential
background to the well-known case of Brown v Leyds NO (1897) 4 OR 17, based on
the book, Brown v Leyds, Who Has the King’s Voice (2017, LexisNexis). It discusses
Chief Justice Kotzé’s judgement in Brown in detail and the major political fallout
it generated. Kotze’s judgement was his expression of the ultimate authority of
the 1858 Grondwet (Constitution) in the Zuid-Afrikaansche Republiek, the judicial
interpretation of which transcended legislative and executive authority in the state.
In finding for Brown and against the state, Kotzé asserted in open court the primacy
of judicial interpretation of the Grondwet over the highest authority of the Volksraad (the legislative authority), that is, the sovereign authority that the state president and
his Volksraad had always regarded as an unimpeachable constitutional guarantee.
The judgement caused unprecedented political upheaval. It led to the state president
dismissing the chief justice from office. It also served to confirm the conviction of
imperial Britain that the Boers could not be trusted to govern the land in which the
world’s largest gold deposits lay. The chief justice’s dismissal was a significant
contributor to the outbreak of the Anglo-Boer War in October 1899. Robert Brown,
in whose favour Kotzé had found, was unable to exert the rights to the claims on the
Witfontein gold diggings the Supreme Court had found he was entitled to. He took
his cause to the United States Senate. After the Anglo-Boer War, the United States
took up Brown’s cause with Great Britain. Great Britain refused to acknowledge
any obligation to Brown to recompense him for the loss of his claims. The dispute
dragged on for years. Only in 1923 did an international arbitral tribunal, presided
over by Henry Fromageot, finally dispose of the matter, finding for Great Britain and
therefore against Brown.